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PETITIONER: KULDEEP SINGH

       Vs.

RESPONDENT: STATE OF HARYANA

DATE OF JUDGMENT:       08/02/1996

BENCH: KIRPAL B.N. (J) BENCH: KIRPAL B.N. (J) MUKHERJEE M.K. (J)

CITATION:  JT 1996 (2)   344        1996 SCALE  (2)6

ACT:

HEADNOTE:

JUDGMENT:    [With Crl. Appeal Nos. 522/84, 660/84, 10/85, 133/85]                       J U D G M E N T KIRPAL, J.      This judgment  will dispose  of  Criminal  Appeal  Nos. 238/85, 522/84,  660/84, 10/85  and 133/85  whereby the High Court partly  allowed the  appeals of  the  respondents  and converted the conviction of the appellants who are sentenced under Section  302 read with Section 149 I.P.C. to one under Section 304 Part-II read with Section 149 I.P.C.      Twelve persons  were tried  for an  incident which  had occurred on  7.7.1982 near  Dharmashala of village Baragudha at about 10 P.M. According to the F.I.R. which was lodged by one Munshi  Singh PW11.  Sukhdev Singh one of the appellants in  these  appeals  who  in  the  company  with  some  other appellants went  to the lane of Harijans in the said village and fired  some shots  in the air. Accordingly, Munshi Singh PW11 alongwith  Jagga Singh deceased. Teja Singh. Balkishan. Prem Singh  and Chhotta  Singh PW12  set out  for the police Station Baragudha  for  reporting  this  matter.  When  they reached near  the Dharmashala  of the  village it is alleged that they  were confronted by Sukhdev Singh and Pritam Singh who were  armed with a gun each, Major Singh Mohinder Singh, Gurtej Singh  son of  Narain Singh and Amarjit Singh each of whom was  armed with a pistol as well as Kuldeep Singh, Zora Singh, Gurtej  Singh son  of Pritam  Singh Munshi  Singh and Naiba Singh  appellants all  armed with  a gandasa  each and kaka Singh who was armed with a lathi. The appellants raised a shout  that the  Harijans be  suitably dealt  with because they did  not listen to others. Thereupon it is alleged that Sukhdev Singh  gave a  blow with  the butt of his gun on the head of  Munshi Singh PW11. Gurtej Singh son of Pritam Singh gave a gandasa blow on the right side of Munshi Singh’s hand while his  left hand  received a blow by a gandasa which was inflicted by  Zora Singh.  Gurtej Singh  son of Pritam Singh also gave  a gandasa blow from the reverse side on his right knee and  another blow on the right shoulder and on the back

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of Munshi Singh. Kaka Singh also gave a lathi blow on Munshi Singh’s fingers.  The appellants  are also  alleged to  have caused injuries  to Jagga  Singh deceased.  Prem Singh,  Bal Kishan and  Teja Singh.  The victims  raised  an  alarm  and thereupon the appellants, alongwith their respective weapons went away from the place of occurrence.      Chhota Singh  PW12 took  the  injured  persons  to  the Primary Health Centre. Baragudha, Dr. Raj Kumar PW3 examined Munshi Singh  PW11 at  11.45 P.M. on 7.7.1982. He noticed 11 injuries on the person of Munshi Singh. On the same night at 12.10 a.m.  the said  Dr. Raj  Kumar PW3 examined Bal Kishan and found  that he  had 3 injuries, all of which were simple in nature.  The said  Doctor also examined Teja Singh on the same night who had 6 injuries on him.      The said  Dr. Raj  Kumar PW3  sent  a  note  about  the occurrence to  police station  Baragudha on  that very night whereupon the ASI Bhup Singh PW15 went to the Primary Health Centre. Baragudha and recorded the statement of Munshi Singh PW11 on  the basis  of which a case under Sections 324, 323, 285, 148,  341 read  with Section 149 IPC and Sections 25/27 of the Arms Act was registered at the said police station.      As the  injuries on  Jagga Singh  and Prem  Singh  were found to  be more  serous they  were referred  to the  civil Hospital at  Sirsa. Dr.  J.L. Bhutani PW2 medically examined Jagga Singh  deceased at 3.35 A.M. on 8.7.1982 and noticed 7 injuries which were as follows:.      "1.  Incised wound  10  cm  x  bone      deep on  the lateral  aspect of the      left side of face in front of pinna      extending towards  the angle of the      mandible. The  margins  were  sharp      and fresh bleeding was present.      2.   Incised wound 8 cm x 1 cm bone      deep on  the top  of the  skull, 1"      above the  hail line  and extending      towards the  top on  the left side.      The margins  were sharp  and  fresh      bleeding  was  present.  X-ray  was      advised.      3.   Incised wound 9 cm x 1 cm bone      deep extending  from the  hair line      in the  direction  of  the  sagital      muture. The margines were sharp and      fresh bleeding  was present.  X-ray      was advised.      4.   There   were   two   punctured      wounds 1  cm  in  diameter  and  2"      apart and  3 cm deep on the lateral      aspect of  the  left  arm.  Clotted      blood  was   present.  There   were      corresponding  punctured  marks  on      the shirt.      5.   Punctured wound  on the dorsum      of  the  left  hand.  Swelling  was      Present.      6.   Patient complained of pain and      swelling  in   the   infra-scapular      region on  the right  side  and  on      examination, surgical emphysema was      present. Advised X-ray chest.      7.   There   was    scratch    mark      (abrasion) 15  cm X  1/2 cm  on the      left side on the back."      Prem Singh  was also examined by the said Doctor and he had 3  injuries on  his person. Thereafter the Doctor sent a

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note to the SHO Police Station at Sirsa about the arrival of the injured persons in the hospital. On police’s application the said  Doctor certified that Prem Singh was fit to make a statement. At  that time  the Doctor  gave an  opinion  that Jagga Singh  was not  fit to  make a  statement  but  on  an another application  being  filed  Dr.J.L.  Bhutani  PW2  on 8.7.1982 at 12.50 P.M. certified that the Jagga Singh was in a fit  condition to  make statement.  Thereupon SI Charanjit Singh PW15  recorded the  statement Ex.  PSS of  Jagga Singh (deceased) at civil Hospital Sirsa. Jagga Singh succumbed to his injuries  on the morning of 10.7.1982 and thereafter the case was converted into one of murder.      After  the   usual  investigation.  Challan  was  filed against all  the appellants.  Charges were  framed  against, them under Section 302 read with Section 149 I.P.C.      At the  trial the  prosecution relied  upon the medical evidence statement  Ex. PSS of Jagga Singh deceased as dying declaration, the  evidence of  recoveries  of  incriminating weapons alleged  to have been made as a result of disclosure statements made  by some  of the  appellants and  the ocular version given  by Munshi  Singh PW11  and Chhota Singh PW12. Bal Kishan Teja Singh and Prem Singh the other three persons who had  received injuries  at the  time of  the occurrence, were given up by the prosecution on the allegation that they had been won over.      The appellants  in turn,  denied their participation in the crime  and it  was asserted  that they  had been falsely involved on  account of the party faction in the village. It may here  be stated  that the motive for the crime which was suggested was  that the  Harijans of  the village  had  cast their votes in favour of the congress Party and the partymen of Sukhdev  Singh appellant  wanted them to cast their votes in favour of the lok Dal Party. The appellants also examined D.S.P. Parma Nand DW1 in their defence according to whom the occurrence took  place when members of the complainant party were returning  from the  police station accompanied by Head constable Sukhjit  Singh and  constables Balwan  and Mahavir Singh. It  was stated  that the  aforesaid  police  officers acted cowardly  inasmuch as  they ran away from the scene of occurrence.      The  Sessions   Judge.  Sirsa   vide   judgment   dated 6/8.12.1983 rejected  the defence  version and  accepted the prosecution evidence and convicted and sentenced the accused as under: <SLS> Pritam Singh Sukhdev Singh.    U/s 148. I.P.C./R.I. for one year each Amarjit Singh Kuldip Singh Mahinder Singh    U/s 302/149 I.P.C. Imprisonment for 0Major Singh      life each. Gurtej Singh s/o Narain Singh  U/s 326/149 I.P.C. R.I. for 3 years each. Gurtej Singh s/o Pritam Singh  U/s 324/149 I.P.C./ R.I. for six months each Zora Singh. Kaka Singh, Naiba Singh and Munshi Singh apellants         U/s 323/149 I.P.C./ R.I for 3                   months each.      The substantive sentences of imprisonment were however, ordered to run concurrently.      On appeals  being filed  the Punjab  and  Haryana  High Court  examined   the  entire   evidence   and   ruled   out consideration of  the dying declaration alleged to have been

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made by  Jagga Singh  Ex. PSS. Even though Munshi Singh PW11 who was  an eye  witness and  had  sustained  injuries,  was declared hostile,  the High  Court nevertheless  referred to his testimony  and observed  that even though he had changed the story  to a  minor extent  his evidence  was  worthy  of reliance as  far as  what he saw on the spot. The High Court also relied  upon the  evidence of  the  other  eye  witness Chhota Singh  PW12 and  observed that  he was present at the place of  incident and  was in  a position  to identify  the members of the attacking party.      The High  Court, however, accepted the arguments of the defence counsel  to  the  effect  that  though  two  of  the appellants were  armed with a gun each and five of them were armed with a pistol each and yet these weapons were not used which showed  that the  appellants did  not have  the common object of  an unlawful  assembly to commit the murder of the victims.  The   High  Court   accordingly.   set-aside   the conviction of  the  appellants  before  it  from  one  under Section 302  read with  Section  149  I.P.C.  to  one  under Section 304 Part-II read with Section 149 I.P.C. and awarded the accused  R.I. for  four years  and a fine of Rs. 5,000/- and in  default of  payment of  fine they  were  ordered  to undergo further  R.I  for  two  years.  The  conviction  and sentences were  ordered to  run concurrently  in the case of all the appellants before the High Court.      Mr.  R.C.Kohli,   learned  counsel  appearing  for  the appellants in  Criminal Appeal No. 10/1985 states that three of the  five appellants  namely, Mohinder Singh, Major Singh and Amarjeet  Singh are since dead. Their appeal, therefore, abates.      Mr. Sushil  Kumar Jain,  learned counsel  appearing for the appellant in Criminal Appeal No. 660 of 1984 states that the appellant  Naiba Singh  is dead.  His appeal, therefore, abates.      The  learned   counsel  appearing   on  behalf  of  the different  appellants   have  sought  to  contend  that  the conclusion of  the Courts  below that  the  appellants  were responsible  for  causing  death  of  Jagga  Singh  was  not Correct. It was submitted that Ex. PSS could not be regarded as a  dying declaration  and had been highly rejected by the High Court. It was also submitted that Munshi Singh PW11 had not supported  the prosecution  version  in  toto  and  that Chhota Singh  P12 was  in fact  not present  at the place of incident. It  was also  contended that the F.I.R. was lodged late and there was no explanation for the same.      We have  carefully gone  through the  judgment  of  the courts below  and have  also seen the evidence on record. It is clear, and is not disputed, that an incident had occurred in the  late evening  of 7.7.1982 in village Baragudha which had led  to injuries  on 5 persons one of whom, namely Jagga Singh, having  succumbed to them. The only dispute which was raised was  whether  the  appellants  were  responsible  for causing the  said injuries. This question is essentially one of fact  and both  the trial court as well as the High Court have come  to a  concurrent finding  of fact  that the  said injuries were  caused by the appellants. The said conclusion seems to flow from the evidence on record. Even if the dying declaration of  Jagga Singh is ignored it is not possible to come to  the conclusion  that Chhota  Singh PW12  was got up witness who  was not  present at  the place of incident. The evidence of  Chhota  Singh  PW12  has  withstood  the  cross examination and  he has supported the prosecution’s case. He had identified  all the  appellants as  being party  to  the attack on  the deceased  and the  injured persons and he has also attributed  the roles  played by each of them. The mere

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fact that  he was  not injured  is not  a ground  which  can persuade us  to come  to the  conclusion  that  he  was  not present at  the place of incident. His testimony having been believed by  both the  trial court as well as the High Court we see no reason to reject the same.      As far  as Munshi Singh PW11 is concerned he was one of the  persons  who  was  injured  in  the  incident.  In  his examination-in-chief he  had  clearly  stated  that  Kuldeep Singh Major  Singh, Amarjit Singh Naiba Singh, Gurtej Singh. Zora Singh.  Mohinder Singh  etc, raised  a lalkara  stating that majbis  be finished. He had further stated that accused persons were  armed with  4 or 5 pistols or gandasa and they all attacked  him. Prem  Singh, Teja  Singh Bal  Kishan  and Jagga Singh.  Though he did not mention the other appellants as persons  who attacked, hevertheless Munshi Singh PW11 did say in his evidence that:      "It is  correct that compromise has      been  effected  with  Pritam  Singh      Sukhdev Singh  Zora Singh  and Kaka      Singh and  that is  why  I  am  not      naming them".      The aforesaid  sentence of Munshi Singh clearly implies that these  named persons had taken part in the incident but they were  not being  named by  him because  of a compromise arrived at  between Munshi  Singh on  the one hand and these four persons  on the  other. In the statement he did not say that some  of the  accused including  Sukhdev Singh  did not take part in the attack on the Harijans.      In  our   opinion,  therefore,  we  see  no  reason  to interfere with  the conclusion  of the  High Court  that the appellants were  guilty of  the offences for which they were convicted and  sentenced by it. In view however of the lapse of time  and inasmuch  as the  appellants were convicted for offences under  Section 304 read with Section 149 I.P.C. and sentenced to  4 years  R.I. and  a fine  of Rs. 5,000/- each were released  on bail by the order dated 28.1.1985 and have already undergone  imprisonment for  over two  years we feel that the  ends of  justice would  be met  by reducing  their sentence from 4 years R.I. to the sentence already undergone by  them.   The  fine   of  Rs.  5,000/-  each  is  however, maintained.      Subject to  this modification  the appeals filed by the appellants are  dismissed. On  payment of  the fine within a period of  two months from the date of communication of this order the  appellants  shall  stand  discharged  from  their respective bail  bonds. In default they shall serve rigorous imprisonment for 2 years each, as ordered by the High Court.